Citation Nr: 1752326	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  14-04 207	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii


THE ISSUES

1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD).

2. Entitlement to service connection for a back disability.

3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Adam Neidenberg, Attorney at Law




ATTORNEY FOR THE BOARD

A. Keninger, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1982 to March 1983.

These matters come before the Board of Veterans' Appeals (Board) from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii.

A videoconference hearing was scheduled in July 2015. Prior to the hearing, the Veteran withdrew her request. Thus, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d).

The Board remanded these matters in December 2015 for additional development. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. Stegall v. West, 11 Vet. App. 268 (1998).

A Supplemental Statement of the Case (SSOC), issued by the RO in August 2016, continued to deny entitlement to a rating in excess of 50 percent from October 5, 2011 for PTSD, entitlement to service connection for a back disability, and entitlement to TDIU.

Since the issuance of the August 2016 SSOC, the Veteran has submitted two private medical opinions. The Board finds the Veteran has properly waived RO review of these opinions and will proceed with review.


FINDINGS OF FACT

1. The Veteran's service-connected PTSD has not manifested by occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood.

2. A back disability is not shown to have been incurred service and is not otherwise related to service.

3. The preponderance of the evidence is against a finding that the Veteran is unable to obtain or maintain any form of substantially gainful employment.


CONCLUSIONS OF LAW

1. The criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.130, Diagnostic Code 9411 (2017).

2. The criteria for establishing service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

3. The requirements for referral for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(b) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

Additionally, the Board finds there has been substantial compliance with its December 2015 remand directives. The Veteran was provided with VA examinations to determine the nature and etiology of her back disability and the current severity of her service-connected PTSD. An August 2016 SSOC continued to deny entitlement to a rating in excess of 50 percent from October 5, 2011 for PTSD, service connection for a back disability, and entitlement to TDIU.

Based on the foregoing, the Board finds the RO substantially complied with the mandates of the remand, and no further remand is necessary. Stegall, 11 Vet. App. at 268. Therefore, the Board will proceed to review and decide the claims based on the evidence of record.

II. Increased Rating - PTSD

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of the disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

The Court has held that, in determining the present level of a disability for an increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provide the following ratings for psychiatric disabilities, including PTSD:

A 50 percent disability rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411.

Under the formula, a 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411.

A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations, grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411.

The Global Assessment of Functioning (GAF) scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Health Disorders (4th ed. 1994) (DSM-IV). A GAF score of 51 to 60 indicates moderate symptoms, or moderate difficulty in social, occupational, or school functioning. DSM-IV; 38 C.F.R. §§ 4.125, 4.130. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).

Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. Carpenter, 8 Vet. App. at 242. An assigned GAF score, like an examiner's assessment of the severity of a condition, is not dispositive of the percentage rating issue; rather, it must be considered in light of the actual symptoms of a psychiatric disorder (which provide the primary basis for the rating assigned). See 38 C.F.R. § 4.126(a). Accordingly, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is to be considered but is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126, VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995).

The United States Court of Appeals for the Federal Circuit held that an evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Vasquez-Claudio v. Shinseki, 713 F3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, "serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas"-i.e., "the regulation . . . requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vasquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411.

Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission." 38 C.F.R. § 4.126(a). The Board must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination." Id.

The Veteran underwent a VA examination for PTSD in August 2011. The Veteran reported being sexually assaulted in December 1982 while in the Army. The Veteran expressed anger at how her case was handled and the way she was treated following the assault.  The Veteran reported the following symptoms: difficulty trusting others, anger, difficulty sleeping and insomnia, hypervigilance-especially at night, difficulty controlling her temper, intrusive thoughts, desire for control, nightmares every two to six months, and feelings of vulnerability-especially when not at work. The Veteran reported that she can be in public and complete errands but she does not like to be in public alone and often will become anxious or uncomfortable if she is out for too long. She also reported a history of substance abuse, but indicated she quit drinking in 2007. The Veteran reported keeping strict "to do" lists and feeling anxiety when she had to deviate from her plans. The Veteran reported a good relationship with her husband and a couple female friends, but she reported that she had infrequent contact with her family.

The examiner reported that there was no evidence of psychosis and indicated that the Veteran maintained good eye contact, had good hygiene, was able to perform activities of daily living, was fully oriented, had normal speech, and did not appear to suffer from memory loss. The examiner also noted that the Veteran suffered from generally mild situational anxiety while in public, but also experienced depression when she was alone and stuck with her thoughts. The examiner also noted that the Veteran's insomnia, though present, did not seem to interfere with her work, suggesting that she was getting enough sleep to properly function. The examiner diagnosed the Veteran with PTSD and assigned a GAF score of 60, noting that the largest source of her emotional distress was her treatment by the military after the sexual assault rather than the assault itself. The examiner further opined that the Veteran was capable of working full time and completing tasks associated with daily living.

Following her initial VA examination, the Veteran began seeking regular VA treatment and with a counselor at the Vet Center. From February 2011 to January 2014, the Veteran reported outbursts of anger, isolative behaviors, avoidance behaviors, difficulty sleeping, nightmares, anxiety, hypervigilance, depression, and intrusive thoughts. The Veteran also reported that she would occasionally just sit and cry for significant periods of time.

The Veteran was consistently noted to have no current suicidal ideation, though she did report one suicide attempt in the 1980s.  Treatment providers consistently reported that the Veteran appeared anxious, but her hygiene, speech, and intelligence were average and appropriate. She was noted to be fully oriented with normal memory.  During this time, the Veteran began taking medications to treat her symptoms. The Veteran did not report significant improvement, but she did say that medication improved her ability to sleep. During this time, the Veteran was consistently assigned GAF scores of 55 or 60.
On numerous occasions, the Veteran did not attend her treatment appointments. Sometimes she would call ahead, noting she did not feel up to leaving her house or driving, and other times the Veteran would not show. Typically, the Veteran's counselor would conduct a counseling session over the phone in place of the missed appointment.

The Veteran attended another VA examination in May 2012. The Veteran reported she had been in a stable marriage for the last 15 years, though she and her husband sleep in separate rooms because she gets anxious sleeping with someone else. She noted she tries to stay active and engage in social activities, noting one close friend, but she does avoid going out in public.  She reported the following symptoms: irritability, anger, hypervigilance, exaggerated startle response, distressing dreams, intrusive and recurrent memories, diminished interest in activities she used to enjoy, avoidance behaviors, feelings of detachment and estrangement, difficulty concentrating, depression, anxiety, panic attacks (weekly or less), difficulty sleeping, disturbances in motivation or mood, difficulty establishing and maintaining social relationships, and difficulty adapting to stressful circumstances. The Veteran reported she was able to handle her finances. The Veteran reported that the medications provided minimal assistance in handling her symptoms. She again acknowledged her history of substance abuse but reported she did not currently drink alcohol.  She also acknowledged her history of suicide attempts but reported no current suicidal ideation.

The examiner diagnosed the Veteran with PTSD, and noted the Veteran likely experienced occupational and social impairment with reduced reliability and productivity.

The Veteran has submitted numerous statements explaining her PTSD symptoms. In November 2011, the Veteran noted she would occasionally wake up in the shower, not knowing how she got there, and she would often cry for hours at a time, see faces, and be paralyzed by fear.

In a July 2015 statement, the Veteran reported hypervigilance, feeling anxious, and noted she had a short temper on her bad days. She indicated that she does not like to drive alone or at night, and, though she can go shopping and run errands, she takes someone with her because she does not like to be alone in public. She also noted that she will experience a lot of stress and anxiety if she has to deviate from her plan for the day. The Veteran reported nightmares and panic attacks, noting she sometimes feels she cannot leave the house and often has trouble sleeping. She notes this causes her to miss one to two days of work each month.

The Veteran's spouse, in October 2015, submitted a statement noting that the Veteran has nightmares and often fights in her sleep. He also noted that she does not like to sleep in a bed, and often, he will hear her crying. He also noted hypervigilance, a desire to be in control, and a frequent need to be alone while at home for hours or days at a time.

An October 2015 private vocational assessment noted that the Veteran has confrontations with co-workers, so she tries to limit contact, but she can work independently.

A final VA examination was conducted in June 2016. It was noted that the Veteran had mild and transient symptoms that would occasionally decrease work efficiencies. The examiner noted that the Veteran appeared uncomfortable, specifically with a male examiner though she declined to reschedule with a female examiner. The VA examiner noted the Veteran had normal hygiene, was socially appropriate, and was cooperative during the examination. Her speech was good with linear and logical cognition. She was fully oriented with no suicidal ideation and denied any delusions or hallucinations.

The Veteran continued to report a good relationship with her husband. She also noted that she had minimal contact with her siblings and parents but noted there was no real conflict.  The Veteran reported that her job kept her mind occupied and she would work for up to 100 hours per week as her work involved multiple time zones. The Veteran also reported that she managed her own finances and shopping-though she continued to note that she took others with her when out in public. She reported she was able to maintain social relationships-though she again noted that she preferred to stay at home rather than go out. The Veteran reported the following symptoms: intrusive thoughts, feelings of vulnerability, obsessive behaviors, desire to maintain control, anxiety, avoidance behaviors, anger towards the military for her treatment after the December 1982 assault, hypervigilance, intrusive thoughts, difficulty sleeping with occasional nightmares, and a quick startle response. The Veteran also reports that she has a low tolerance for the behaviors of co-workers and is quick to anger.

In September 2016, the Veteran submitted a private medical opinion. At this examination the Veteran reported headaches, nightmares, weight and appetite fluctuations, crying, decreased sleep, depression, difficulty concentrating, difficulty with intimacy and relationships, emotional numbing, anger, isolation, and distrust of others. The Veteran specifically reported that she felt anger at the military because she feels her sexual assault cost her benefits and her military career.

After considering the entirety of the Veteran's claims file, including the Veteran's treatment records, VA examinations, the Veteran's statements, the statement submitted by the Veteran's spouse, and the private medical opinion, the Board finds the Veteran's symptoms do not rise to the level of occupational and social impairment with deficiencies in most areas.

The record shows that the Veteran is able to work a full-time job. The Veteran reports working well over 40 hours per week and that her job helps her to avoid intrusive behaviors and manage her symptoms.  Additionally, the Veteran has been able to obtain a criminal justice degree and maintains relationships with her husband and a few close friends. Despite not having a close relationship with her siblings and parents, the Veteran does not report that those relationships involve conflict. The preponderance of the evidence indicates the Veteran has normal judgment, speech, impulse control, thinking, and hygiene, and the preponderance of the evidence is against a finding that she exhibits signs of suicidal ideation. Additionally, the Veteran is able to manage her finances, run errands, and complete the tasks required for daily living.

While the Board acknowledges that the Veteran does exhibit depressed mood and some obsessive rituals and behaviors, these behaviors seem to be well managed by the Veteran and do not significantly impact her occupation or her family or social relationships. It is also noted that the Veteran does experience some symptoms of panic, especially when she is forced to deviate from her daily plan, and that the Veteran reported panic attacks. However, again, the preponderance of the evidence is against a finding that the Veteran's work is impacted, as she continues to work significant hours, though occasionally needing to miss a day or two to manager her symptoms. The Veteran's nightmares were infrequent, and her difficulty sleeping did not impact her occupation and was better controlled with medication.

Additionally, throughout the period on appeal, examiners and treatment providers assigned the Veteran GAF scores between 55 and 60. These GAF scores indicate the Veteran's symptoms were no more than moderate, which is consistent with the symptoms reported throughout the periods on appeal and consistent with the 50 percent rating.

Because the Veteran's symptoms related to her diagnosis of PTSD do not more closely approximate those required for a 70 percent rating, the Veteran's currently assigned 50 percent rating is proper, and a rating in excess of 50 percent is denied.

III. Service Connection - Back Disability

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009).

The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report to the onset and continuity of his symptomatology. Id. at 438. Moreover, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a lay person, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Kahana, 24 Vet. App. at 433, n. 4.

A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)).

The Veteran contends that her back was injured in the course of her military sexual assault in December 1982. At the time of the assault, the Veteran's service treatment records (STRs) indicate she was too emotional to be examined, but it was noted that she was ambulatory at the time of her release from the emergency room. The Veteran, in a July 2015 statement, contends that during the course of the assault, she felt something happen to her back and heard her back "crack." She further contends that she has had pain in her back since that time.

At a June 2016 VA examination, the Veteran was diagnosed with a lumbosacral strain. Additionally, a private medical opinion submitted in September 2016 diagnosed the Veteran with degenerative disc disease of the lumbar spine. Therefore, the Veteran meets the first element of service connection requiring a current disability.

Despite having a current disability, the Board finds that the preponderance of the evidence is against a finding  that the Veteran's current back disability is a result of the sexual assault the Veteran suffered in service or any other incident or injury in service. Specifically, at the Veteran's March 1983 separation examination, the Veteran wrote that she was in good health. The Veteran noted that she had an auto accident with an injury to her forehead and that she had plastic surgery and surgery to remove her tonsils and appendix prior to service. However, notably, the Veteran specifically denied a history of recurrent back pain or indicate she was experiencing back pain at the time of her discharge. The STRs do not document any other notation of back pain. Clinical evaluation of the spine and other musculoskeletal system was normal at the time of the separation examination in March 1983.

The Veteran's medical record indicates she first sought treatment for back pain in 2012. While the Veteran noted at that time that she had suffered from back pain for 30 years, the preponderance of the evidence is against a finding that she had been experiencing chronic back pain in service. For example, the Veteran did not report any back pain between the time of the December 1982 assault and her March 1983 discharge, and she specifically denied recurrent back pain at service discharge, while reporting other symptoms she had experienced during and prior to service. The Veteran did not report any injury to her back during the December 1982 sexual assault until her July 2015 Statement in Support of Claim. The Board accords more probative value to the statements the Veteran made contemporaneously with her service than statements she is making in connection with her claim for service connection.  

Additionally, when the Veteran submitted her claim for service connection for PTSD in January 2011, she did not include a claim for service connection for a back disability, which tends to establish that she did not incur a back disability at the time she was assaulted, as she was filing a claim for a disability that resulted from this assault. When evaluated by VA in August 2011 for her PTSD and was asked for her past medical history, the Veteran described having headaches, which disability was listed under Axis III of her psychiatric diagnosis. The Veteran did not report a back disability, which the Board finds that had she been experiencing a chronic back disability at that time, she would have reported it at that time. This further tends to establish that she was not having a chronic back disability in 2011.

For the above reasons, the Board finds that the Veteran's allegation of having sustained a back injury in service to be not credible. Even if her husband is able to state that she has had back pain since the 1990's, it does not establish an in-service disease or injury to the Veteran's back during service.

The Board acknowledges the private medical opinion submitted by the Veteran in September 2016. That examiner opined that the Veteran's back disability was chronic and caused by the sexual assault the Veteran experienced in December 1982. However, as stated above, the Board finds that the Veteran's allegations of an in-service back injury, to include at the time of the sexual assault, to be not credible. Thus this medical opinion is based on an inaccurate factual history, which results a finding that the medical opinion has no probative value. 

Absent an in-service disease or injury, the second element of direct service connection has not been met, and entitlement to service connection must be denied.

In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence on any aforementioned theory of entitlement. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thus, the claim must be denied.

III. TDIU

A TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from her service-connected disabilities. See 38 C.F.R. § 4.16(a). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under § 4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id.

If a Veteran does not meet the aforementioned criteria, a total disability may still be assigned, but on a different basis. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, the rating boards are required to submit to the Director, Compensation Service, for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage of standards set forth in 38 C.F.R. § 4.16(a). Id.

In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).
The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether a Veteran, as a result of her service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with her educational and occupational experience. 38 C.F.R. § 3.340, 3.341, 4.16. The Board also notes that the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).

The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

The Veteran is service connected for PTSD at 10 percent from January 20, 2011 and 50 percent from October 5, 2011; noncompensable infertility due to pelvic inflammatory disease; and noncompensable female sexual arousal disorder. The Veteran's combined rating for compensation purposes is 10 percent from January 20, 2011 and 50 percent from October 5, 2011. As a result, the Veteran does not meet the schedular criteria for TDIU.

Prior to service, the record suggests the Veteran graduated from high school. After service, the Veteran worked at a department store and as an escort. She then began working as a security guard for approximately eight years but quit to care for a sick family member. She was hired as a manager for a security company that allowed her to work from home and later started her own security company, which she ran for two and a half years. The Veteran than attended school online, receiving her criminal justice degree in 2010. After graduating she worked in the fast food industry. At a June 2016 VA examination, the Veteran reported that she had begun working as a branch manager and director of operations for a security company in approximately 2013 and worked well over 40 hours per week.

The Board acknowledges that the vocational assessment submitted by the Veteran in October 2015 contained an opinion that the Veteran had been vocationally disabled since January 2011. However, since January 2011 the Veteran has obtained full-time employment that she has maintained for at least three years. The Veteran is able to work well over 40 hours a week, and at her VA examination in July 2016, the Veteran reported that she felt that staying busy with her employment helped her to manage her symptoms.

Because the Veteran is currently gainfully employed and has maintained that employment for a significant period of time, the Board finds that referral for consideration of a TDIU rating on an extraschedular basis is not required, and the claim is denied for the entire period on appeal.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.  


ORDER

Entitlement to a rating in excess of 50 percent from October 5, 2011 for PTSD is denied.

Entitlement to service connection for a back disability is denied.


Entitlement to a TDIU rating is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs